McFarland v Byron

2045/03 NAOMI RADA MCFARLAND - v- MICHAEL PETER BYRON JUDGMENT 1 HIS HONOUR: The Plaintiff, Naomi Rada McFarland, and the First Defendant, Michael Peter Byron, lived in a de facto relationship from some time in 1997 until early July 2001. (The Plaintiff says that the relationship commenced in July 1997, whilst the First Defendant says that it commenced on 25 January 1997.) No children were born of that relationship. The Second Defendant, Stephen McFarland, is the father of the Plaintiff. 2 The proceedings were instituted in the Local Court at Parramatta on 29 October 2002 by application for adjustment of interests with respect to the property of the parties. The present Plaintiff was the Applicant in that application and the present Defendants were respectively the First Respondent and the Second Respondent thereto. Each of those Respondents filed a response to the application, that of the First Defendant being filed on 18 February 2003, and that of the Second Defendant being filed on 18 March 2003. 3 Subsequently, by order made by consent on 19 March 2003, the proceedings were transferred from the Local Court to the Supreme Court. 4 Thereafter an amended defence was filed by the First Defendant on 30 October 2003. A cross-claim was filed by the First Defendant on the same date, naming each of the Plaintiff and the Second Defendant as Cross-Defendants thereto. 5 On 14 April 2004 the Second Defendant filed a cross-claim, described as second cross-claim, which named the First Defendant and the Plaintiff as the First Cross-Defendant and the Second Cross-Defendant respectively. 6 Defences were filed by one or both of the Cross-Defendants to the foregoing cross-claims. 7 Essentially the dispute between the parties relates to a house property situate at and known as 30 Ryan Crescent, Riverstone ("the Riverstone property"), which was the residence of the Plaintiff and the First Defendant from its acquisition in February 1998 until the termination of their relationship in early July 2001. 8 The Riverstone property was acquired by the parties and the Plaintiff's mother Ingeborg Carla McFarland (also referred to as Ingrid McFarland), who was the wife of the Second Defendant, as joint tenants. Mrs Ingrid McFarland died on 24 August 2001. In consequence, her undivided one quarter share in the Riverstone property passed by survivorship to the Plaintiff, the First Defendant and the Second Defendant, each of whom is now entitled to hold an undivided one third share in that property. 9 By the Plaintiff's original application and by the First Defendant's cross-claim, each of those parties seeks an order for the adjustment of the interests of the parties in property, pursuant to section 20 of the Property (Relationships) Act. By his cross-claim the First Defendant also seeks against the Second Defendant declaratory (and consequential) relief, grounded upon the assertion that the Second Defendant holds his interest in the Riverstone property on trust for the Plaintiff and the First Defendant in equal shares. 10 By her application the Plaintiff seeks the transfer to her of the First Defendant's interest in the Riverstone property in return for the payment by the Plaintiff to the First Defendant of the sum of $11,000. 11 By his cross-claim the First Defendant seeks that the Riverstone property be sold (either pursuant to the provisions of section 66G of the Conveyancing Act 1919 or in consequence upon an order sought in that regard pursuant to section 20 of the Property (Relationships) Act) and that the net proceeds of sale be divided equally between the Plaintiff and the First Defendant; or, alternatively, that the First Defendant transfer to the Plaintiff his interest in that property in return for the payment to him by the Plaintiff of $100,000. 12 By his cross-claim the Second Defendant seeks substantially a declaration that the Riverstone property is held by the parties on trust for themselves "as tenants in common as to one half to the Second Cross Defendant [the Plaintiff], one quarter to the First Cross Defendant [the First Defendant] and one quarter to the Second Cross Defendant [the Plaintiff]". (I query whether the wording of that relief is, in fact, what is intended by the Second Defendant.) 13 It will be appreciated that, although the Plaintiff and the Second Defendant are on opposite sides of the record, the realities of the litigation are that the Plaintiff and the Second Defendant are in the same camp, and that each of them is supporting the substantive claim of the Plaintiff and the cross-claim of the Second Defendant, whilst opposing the cross-claim of the First Defendant. 14 Regarding the relief sought by each of the First Defendant and the Second Defendant by way of declarations of trust, it should be here recorded that at the outset of the hearing on 28 February 2005 Justice Campbell, as Duty Judge in the Equity Division, by consent of all parties referred all issues in the proceedings to me for trial. 15 At the outset of the hearing it was noted that it was agreed between the parties that the present value of the Riverstone property is $365,000. 16 The Plaintiff was born on 25 September 1970 and is presently aged 35. At the commencement of the de facto relationship in 1997 she was in employment receiving a gross salary of about $44,000 a year. Her assets consisted essentially of household goods and furniture (including what was described as an antique writing desk), and a Nissan Exa motor vehicle (which she had purchased in 1995 with the assistance of a personal loan of about $17,000 from her father, the Second Defendant, and upon which she said that an amount of almost $6,700 was at that time outstanding). 17 The First Defendant was born on 13 June 1976 and is presently aged 29. At the commencement of the relationship he also was in employment, receiving a gross salary of about $25,700 a year. His assets consisted essentially of items of furniture and furnishings and personal effects, as well as a Toyota Celica motor vehicle and a Kawasaki motor cycle, and what was described as a Bourbon collection and paraphernalia. At that time the Defendant had a debt to the Endeavour Credit Union of about $5,000. That debt was repaid by him during the period of his relationship with the Plaintiff, from wages earned by the First Defendant during the relationship. 18 At the time of the commencement of the relationship each of the Plaintiff and the First Defendant (as well as the Second Defendant and Mrs. Ingrid McFarland) was employed by a company Austdac Pty. Limited. The precise nature of the positions in which the Plaintiff and the First Defendant were employed by that company did not emerge from the evidence. In addition, the First Defendant subsequently worked a second job, cleaning offices and washrooms of that company, in order to pay off as quickly as possible the loan which the Second Defendant and Mrs. Ingrid McFarland had provided to the Plaintiff and the First Defendant to meet the deposit, stamp duty and associated legal costs when the Riverstone property was purchased. 19 At the outset of the relationship the Plaintiff and the First Defendant resided first in rented accommodation at Marayla, for about six months, and then at Nelson (again in rented accommodation), for about six months, and ultimately in the Riverstone property, from 6 February 1998 until the termination of the relationship in early July 2001. 20 For a period of about three months from April until June 1999 the Plaintiff and the First Defendant separated. Throughout that period the Plaintiff continued to reside in the Riverstone property, whilst the First Defendant resided, first with a friend for a short period, and then in rented accommodation at Kellyville. That separation appears to have been precipitated by a request (to use a somewhat neutral term) made by the Plaintiff that Mr Daniel Simon Sperotto, a friend of the First Defendant, who had been boarding with the Plaintiff and the First Defendant during the period from about June 1998 until April 1999, should peremptorily leave the Riverstone property. The purpose of the Plaintiff and the First Defendant having a boarder in the Riverstone property was to achieve financial assistance which would help their meeting the mortgage payments. 21 A reconciliation was subsequently effected between the Plaintiff and the First Defendant, who moved back into the Riverstone property in June 1999. Throughout the period of his absence the First Defendant continued to pay his share of the mortgage payments and outgoings on the Riverstone property, as well as meeting a one-third share of the rent and outgoings of the rented accommodation at Kellyville which had been leased for a period of six months (that is, even after he had reconciled with the Plaintiff and had returned to residence in the Riverstone property). 22 Upon the termination of the relationship the First Defendant departed the Riverstone property, taking with him his Bourbon collection and certain personal possessions. The Plaintiff remained in residence at the Riverstone property from then until 20 February 2005. From the termination of the relationship to the present time the Plaintiff has paid all outgoings in respect to the Riverstone property, and has effected necessary repairs to that property. The First Defendant has made no contributions to any of those outgoings or repairs since he departed the Riverstone property in July 2001. 23 It should be here recorded that for a period after the termination of the relationship the Plaintiff had a boarder residing with her in the Riverstone property. Although the First Defendant is a co-owner of that property he has received no part of the occupation fee which has been paid by that boarder to the Plaintiff. 24 From the time of their reconciliation in June 1999 until the termination of the relationship the Plaintiff and the First Defendant resided in the Riverstone property. 25 I have already referred to the personal loan which the Plaintiff had received from her father in 1995 to assist in her purchase of a Nissan Exa motor vehicle. During the course of the relationship the Plaintiff was paying off that loan to the Second Defendant. 26 Subsequently in November 2000 the Plaintiff agreed to sell her Nissan Exa motor vehicle to the First Defendant for $5,000. That amount (together with interest on the outstanding balance) was paid off at the rate of $50 a week from November 2000 until 16 August 2001, by which time an amount of $3,337 was still owing by the First Defendant upon the transaction. 27 In July 2002 the Plaintiff instituted proceedings in the Local Court at Parramatta, claiming from the First Defendant the sum of $5,000 in respect to that motor vehicle. It was the assertion of the First Defendant that there had been an agreement between himself and the Plaintiff that the outstanding amount owing in respect to that motor vehicle should be paid to the Plaintiff from the proceeds of sale of the Riverstone property. On 25 March 2003 the Plaintiff withdrew her claim in the Parramatta Local Court. However, as I understand it, she desires that the outstanding indebtedness of the First Defendant in respect to the motor vehicle should be dealt with in the present proceedings. 28 In addition, the First Defendant acknowledges a liability to the Plaintiff in an amount of $1,189 in respect to a credit card indebtedness. It follows, therefore, that at the termination of the relationship there was a total indebtedness of the First Defendant to the Plaintiff of about $4,500. Any order made in the present proceedings should reflect that indebtedness. 29 Very considerable evidence (both by affidavit and documentary evidence and by oral testimony) was placed before the Court concerning the acquisition of the Riverstone property and the circumstances surrounding that acquisition.

35 The Plaintiff disputed the extent of the non-financial contributions of the First Defendant towards the relationship, and, in particular, the extent of his contributions towards the conservation and improvement of the Riverstone property. Nevertheless, I am satisfied that, in general, there was an equality in the contributions of the parties, both financial and non-financial contributions, to the de facto relationship. I have already recorded that the First Defendant took a second job, as a cleaner, to assist him in making his contributions towards the mortgage payments and towards the repayment of the loan advanced by the Second Defendant and his wife for the deposit, stamp duty and associated legal costs. 36 A great deal of evidence was placed before the Court, especially oral evidence during the course of the hearing, concerning discussions and negotiations between the parties after the termination of the de facto relationship. That evidence was not of much relevance to the resolution of the proceedings, except to the extent that some matters arising in those discussions and negotiations may have been inconsistent with the assertions made by each of the parties during the course of the present hearing. 37 It is in the light of the foregoing facts and circumstances that the Court must proceed to a consideration of the claim of the Plaintiff and the cross-claims of the First Defendant and of the Second Defendant. I have had the benefit of receiving a written outline of submissions from Counsel for the respective parties, as well as a chronology from Counsel for the First Defendant. Those documents will be retained in the Court file. 38 The Court should not proceed to exercise its jurisdiction to create rights in respect to the Riverstone property, by adjusting the interests of the parties in that property, until it has determined what are the present interests of the parties in that property. 39 Upon its acquisition the Riverstone property was vested in the Plaintiff, the First Defendant, the Second Defendant and the late Mrs Ingrid McFarland as joint tenants. As a result of the death of Mrs Ingrid McFarland on 24 August 2001 her interest in the Riverstone property passed by survivorship to the three remaining joint tenants. In consequence, therefore, each of the Plaintiff, the First Defendant and the Second Defendant is legally entitled to be registered as joint tenant as to one undivided one-third share in the Riverstone property. 40 That legal entitlement, however, does not reflect what any of the parties now want. Each of the Plaintiff and the Second Defendant submits that, irrespective of the fact that the legal title to the Riverstone property, upon its acquisition, vested in the four purchasers as joint tenants, nevertheless the interest of each of the Second Defendant and the late Mrs Ingrid McFarland was as to one fourth share of the Riverstone property as a tenant in common (at least in relation to each other), and that, upon the death of Mrs Ingrid McFarland (who by her will left the entirety of her estate to the Second Defendant), her interest passed by her will to the Second Defendant, with the consequence that he is now entitled to a one half interest in the property. If a submission along those lines (in effect that, although at law each party was a joint tenant as to one undivided one-fourth share, nevertheless, in equity each of the parties was a tenant in common as to a one-fourth share in the Riverstone property) can be substantiated, then the consequence is that the present interest of the First Defendant in the property would be reduced from a one-third interest to a one-fourth interest. 41 It is submitted, however, on the part of the First Defendant that the role and involvement of the Second Defendant and the late Mrs Ingrid McFarland was purely to assist their daughter, the Plaintiff, and her partner, the First Defendant, in the acquisition of a home, and that the Second Defendant and his wife held their respective legal interests on trust for the Plaintiff and the First Defendant. If that submission of the First Defendant can be substantiated, then the consequence is that the First Defendant has an entitlement not, as the legal title reflects, to a one-third interest; not, as is submitted on behalf of the Plaintiff and the Second Defendant, to a one-fourth interest; but to a one-half interest, the other one-half interest being that of the Plaintiff. 42 I shall deal first with the case propounded by the Second Defendant (and in this regard supported by the Plaintiff) that, irrespective of the legal interests of the parties in the property, in equity the property should be treated as being held by each of the four purchasers as to a one-fourth share as tenant in common. It should be observed that this assertion was first propounded well after the de facto relationship of the Plaintiff and the First Defendant had terminated and those parties had become embroiled in a significant dispute concerning the disposition of the Riverstone property. They were unable to agree upon the amount which should be paid by the Plaintiff to the First Defendant in order to buy out his interest in that property, since, at least at that time, it was the desire of the Plaintiff to continue to reside in that property as her home, and for that purpose to acquire the interest of the First Defendant therein. 43 The first occasion when the Second Defendant asserted that he and his wife were conjointly entitled to a one-half interest in the Riverstone property and that the interest of the Second Defendant therein was only one-quarter was at a meeting held between the Second Defendant and the First Defendant at the Castle Hill RSL Club in early August 2001. Further, it is not without significance that at the time when the Plaintiff and the First Defendant had temporarily separated in April 1999 the Plaintiff presented to the First Defendant a written outline prepared by the Second Defendant concerning the relationship between the parties and the circumstances in which the Riverstone property had been acquired. That written outline (which is exhibit 1. MB8) does not contain any suggestion that the interests of the Second Defendant and his now deceased wife were other than those of joint tenants, each holding a one undivided one-fourth share, which, upon the death of any of the joint tenants would pass by survivorship to the remaining joint tenants. 44 Evidence concerning the circumstances in which the contract was prepared on behalf of the purchasers was given by Mr Peter Berkeley Cornock, the solicitor who acted on their behalf upon the acquisition of the Riverstone property. Mr Cornock was extensively cross-examined on behalf of both the Plaintiff and the Second Defendant. 45 It was the evidence of Mr Cornock that, whilst he did not have a specific recollection of doing so in this particular instance, it was his invariable practice, when discussing with purchasers of real estate, to explain to those purchasers the distinction between a joint tenancy and a tenancy in common, and that he believed he had done so on the occasion of the acquisition of the Riverstone property by the three present parties and the late Mrs Ingrid McFarland. Attempts were made on the part of the Second Defendant to establish that he had never had such a distinction drawn to his attention (and, by inference, that he would not have agreed to have purchased the property as a joint tenant, but only if it were held by the four purchasers as tenants in common). 46 I was not favourably impressed by the evidence of the Second Defendant in this regard. His asserted innocence concerning conveyancing transactions and the purchase of real property did not stand well with his professional status and experience as an accountant or with his own previous experiences in the acquisition of real property, and, especially, with the various communications from himself to the First Defendant, the purport of which was that the Second Defendant was knowledgeable and experienced in real property dealings. I preferred the evidence of Mr Cornock to that of the Second Defendant. 47 I am not satisfied that the Second Defendant has established that the four purchasers, although at law joint tenants, held their interests in the nature of equitable interests as tenants in common or otherwise than as joint tenants, each having an interest as to one undivided one-fourth share in the property. 48 I turn now to the case propounded by the First Defendant, that in effect, the Second Defendant and his wife held no beneficial interest in the Riverstone property, but that they held their legal interest, each as to an undivided one-fourth share in the property, upon trust for the Plaintiff and the First Defendant. 49 The Second Defendant attempted to refute the foregoing case propounded by the First Defendant by asserting that that certainly cannot have been the intention of himself and his wife, since they had entered into the purchase of the Riverstone property as an investment. Such an assertion that their interest in the property was as an investment cannot be supported by the evidence, and is indeed contrary to the express statements made by the Second Defendant in the application of the purchasers for finance from the St George Bank. The Second Defendant in response to specific questions asked in the application for finance stated that the Riverstone property was not being purchased as an investment. Further, the suggestion now being made by the Second Defendant that he and his wife had come in as co-purchasers of the property in the role of investors is clearly contrary to the expressed intention of all the parties at the time of the acquisition of the property. 50 It is abundantly clear from the evidence that the involvement of the Second Defendant and his wife was to assist their daughter, the Plaintiff, and her partner, the First Defendant, in acquiring a home, in circumstances where the Plaintiff and the First Defendant, lacking any history of financial transactions, were not enabled on their own to obtain housing finance. They had been informed that the only circumstances in which such finance could be made available to them would be if some other persons (in this case the Plaintiff's parents) were prepared to come into the transaction as co-purchasers, and were also prepared to give a mortgage over their own home, as additional security for the housing loan in respect to the Riverstone property. I am satisfied that the intention of all the parties at the time of the acquisition of the property was that it should be acquired as and should be retained as the matrimonial home of the Plaintiff and the First Defendant. Indeed, the Second Defendant at the time when the proposal was being made that he and his wife should come in as co-purchasers, spoke to the young couple about the purchase of a home as being a commitment. 51 The suggestion now made on behalf of the Second Defendant that the involvement of himself and his wife in the Riverstone property was in the nature of an investment is also inconsistent with the statement made by him at the time when he and his wife agreed to come into the transaction, that both he and his wife would by their wills ensure that none of their other children were left a share in the Riverstone property as a consequence of their deaths. Not only was that evidence of the Second Defendant inconsistent with the involvement of himself and his wife in the purchase being in the nature of an investment. It was also inconsistent with the title to the property being held by the parties in joint tenancy, and was inconsistent with the assertion now being made on behalf of both the Second Defendant and the Plaintiff that the beneficial interest of the Second Defendant's wife would be part of her estate and would pass to the Second Defendant by the terms of her will, leaving to him the entirety of her estate. 52 For the Second Defendant now to suggest that he and his late wife were entering into the purchase of the Riverstone property as an investment flies in the face of the entirety of the evidence surrounding the acquisition of the property, and the agreement of the Second Defendant and his wife to assist the young couple in obtaining a housing loan. 53 The fact that I am not satisfied that the Second Defendant and his wife did not enter into the transaction as an investment does not, however, necessarily lead to the conclusion sought by the First Defendant - that the Second Defendant and his wife held their interests in the property on trust for the Plaintiff and the First Defendant. Whilst it was the intention of the parties that only the Plaintiff and the First Defendant should be responsible for meeting the mortgage repayments, nevertheless, in the event that they might not do so, the Second Defendant and his wife had taken the serious step of granting a mortgage over their own residence at Castle Hill as additional security for the mortgage over the Riverstone property. Further, the entirety of the deposit, together with stamp duty and associated legal costs, were in the first instance paid by the Second Defendant and his wife, although those amounts totalling about $14,500 were subsequently repaid by the Plaintiff and the First Defendant. 54 There is no material to support the submission on behalf of the First Defendant that there existed an express trust over the interests of the Second Defendant and his wife in the Riverstone property in favour of the Plaintiff and the First Defendant. Neither is there any evidence to support the submission of the First Defendant that there came into existence a constructive trust over that property in favour of the Plaintiff and the First Defendant of the nature recognised by the High Court of Australia in such cases as Muschinski v Dodds (1985) 160 CLR 583 and Baumgartner v Baumgartner (1987) 164 CLR 137. (See, also, Allen v Snyder [1977] 2 NSWLR 687, a decision of the Court of Appeal of New South Wales which was approved by the High Court of Australia in Muschinski v Dodds.) 55 In my conclusion the First Defendant has not established that the interests of the Second Defendant and his wife in the subject property were held by them on trust for the Plaintiff and the First Defendant. 56 It follows from my foregoing conclusions that I am not satisfied that either an express trust or a constructive trust in the subject property has been established by either the Second Defendant or the First Defendant. In these circumstances I am satisfied that the legal entitlement of each of the parties to an undivided one-third share in the subject property as joint tenants reflects the beneficial interests of the parties in that property. 57 I have already observed that that legal entitlement is not the result which is sought by any of the parties. Accordingly, it becomes necessary for me to proceed to a consideration of the claim of each of the Plaintiff and the First Defendant for the adjustment of the interests of those parties in the Riverstone property, pursuant to the provisions of section 20 Property (Relationships) Act 1984. 58 I have already recorded that the deposit, stamp duty and legal costs associated with the purchase of the Riverstone property were in the first instance paid by the Second Defendant and his wife, but were shortly thereafter repaid by the Plaintiff and the First Defendant. Throughout the period of the relationship the Plaintiff and the First Defendant were each in employment. Apart from the Riverstone property neither of those parties had any significant assets throughout the period of the relationship. The contributions of the parties first to the repayment of the amount of about $14,500 (representing the deposit, stamp duty and associated legal costs), and subsequently to the mortgage payments in respect to the housing loan were equal (although, as I have already recorded, after the termination of the relationship the Plaintiff bore the entirety of the mortgage payments and outgoings in respect to the property). 59 An attempt was made on behalf of the Plaintiff to establish that the contributions, other than financial contributions, of the nature described in section 20 of the Act (being contributions to the conservation or improvement of the Riverstone property or contributions made in the capacity of homemaker) which were made by the First Defendant were less than those made by the Plaintiff herself. 60 In approaching a claim for the adjustment of the interests of parties in property pursuant to section 20(1) of the Property (Relationships) Act, the Court should make a holistic judgment, and should not attempt to evaluate the respective contributions of the parties as if it were undertaking a reductionist process analogous to the taking of partnership accounts (notoriously one of the most time consuming and expensive of litigious exercises) (see Davey v Lee (1990) 13 Fam LR 688). 61 I am satisfied that the contributions of the parties to the acquisition, conservation and improvement of the Riverstone property were more or less equal, as were their respective contributions made in the capacity of homemaker. Further, it will be appreciated that from the termination of the relationship until early 2005 the Plaintiff had the benefit of residing in the Riverstone property. Throughout that period she has paid, and, as I understand it, has continued to the present time to pay, the mortgage payments and all outgoings in respect to that property. Nevertheless, she has had the benefit of residing in that property, without making any payment to the other co-owners in return for that occupation. Neither has she accounted to the other two co-owners for the moneys which she has received from the boarder who resided in the property for at least part of the period after the departure of the First Defendant. 62 It seems to me that in those circumstances the legal interests of the parties in the Riverstone property should not be disturbed and that each of the Plaintiff and the First Defendant should retain an entitlement to a one-third interest in that property. That consequence will leave undisturbed the remaining one-third interest of the Second Defendant. 63 It would appear that the Plaintiff no longer desires to reside in the Riverstone property. That being so, it is appropriate that the property be sold. That now appears to be the desire of each of the parties. The net proceeds of sale, after payment of the amount outstanding on the mortgage and payment of all expenses and costs associated with the sale, should be divided equally between the Plaintiff, the First Defendant and the Second Defendant. Provision should be made, however, for the payment to the Plaintiff out of the First Defendant's share of such proceeds of the acknowledged amount of his indebtedness to her, in the sum of about $4,500, being in respect to the First Defendant's purchase of the Nissan Exa motor vehicle and to his credit card indebtedness to the Plaintiff. 64 Since no party has achieved the result desired by that party it will be necessary for me to receive submissions as to costs. 65 Accordingly, I stand the matter over to a date to be fixed by arrangement with my Associate, for the bringing in of Short Minutes to reflect my foregoing conclusions, and for argument as to costs.

At a glance

Court

Decision date

Before

Source

Judgment (15 paragraphs)

Parties

Cases Cited (4)

Cited By (1)